HomeMy WebLinkAbout95-075 CC ResolutionRESOLUTION NO. 95-75
A RESOL~ION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA APPROVING THAT CERTAIN
AGREEMENT ENTITLED "OWNER PARTICIPATION
AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
TEMECULA AND T.Z.B.G., INC., A CALIFORNIA
CORPORATION" DATED AS OF AUGUST 31, 1995
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. The City Council of the City of Temecula does hereby find,
determine and declare as follows:
a. The project proposed by Participant, T.Z.B.G., Inc., is generally
known as the Old Town Entertainment Center Project ("Project") and will generally
consist of an Opera House, Wild West Arena, cabaret/playhouse theaters, "quick
draw" and indoor/outdoor exhibitions, restaurants, theme-related retail, Old Town
Festival Square, and parking facilities as more specifically described in Section 2.1 of
the Owner Participation Agreement.
b. The Project will be located within the Tourist Core Retail Area as
designated on the Old Town Specific Plan and within the Westside Area as designated
in the Westside Specific Plan.
c. Prior to the consideration and adoption of this Resolution and approval
of the Agreement by the Board of Directors of the Redevelopment Agency of the City
of Temecula, both the City Council of the City of Temecula and the Board of
Directors of the Redevelopment Agency of the City of Temecula held a duly noticed
joint public heating on August 31, 1995 to consider the proposed Owner Participation
Agreement. The hearing was duly noticed pursuant to legal advertisements in a
newspaper of general circulation within the community once per week for two
successive weeks prior to the hearing pursuant to Government Code Section 6066.
The Agency also prepared a "Summary Report of the Owner Participation Agreement
by and between the Redevelopment Agency of the City of Temecula and T.Z.B.G.,
Inc., a California Corporation," dated August 15, 1995, which report was prepared in
accordance with the provisions of Health and Safety Code Section 33334 and was on
file in the City Clerk's Office of the City of Temecula and available for public
inspection at the time of first publication of the Notice of Joint Public Hearing.
as\95-75
d. Completing the development of the Project and the redevelopment of
the Site pursuant to the Agreement will assist in the elimination of blight in the
Project Area of the Redevelopment Plan of the Temecula Redevelopment Project Area
1988-1 and is consistent with the Implementation Plan adopted by the Agency for the
Project Area in that the Project will: (1) provide a broad range of public service
infrastructure improvements to induce private investment in the Old Town Area; (2)
promote the preservation and enhancement of the Old Town Area in accordance with
the goals and objectives of the Old Town Specific Plan; (3) promote the expansion of
the Project Area's commercial base and local employment opportunities to provide
jobs for the area; (4) assist in the continued development of the Old Town Area as a
tourist destination and enhancement of the tourist industry as a major force within the
community; (5) encourage and provide for development of vacant properties and
replacement of the older non-historical retail buildings which typify the blight
conditions which exist in the Project Area. Completing the redevelopment of the Site
as proposed will also assist in eliminating blight in the Project Area by generating
new employment opportunities and development opportunities in the Project Area.
e. The Agreement pertains to and affects the ability of the Agency to
finance its statutory obligations and for all parties to finance and carry out the
purposes of this Agreement and the goals of the Plan and is intended to be a contract
within the meaning of Government Code Section 53511.
f. The City Council has carefully considered all of the written information
and documents presented to it prior to and during the public hearing as well as the
oral comments received at the public hearing.
Section 2. Section 4.2 of the Agreement provides for the payment by the
Agency of certain funds to Participant to construct Public Improvements consisting of: (1)
Renovation and expansion of the Old Town First Street Bridge; (2) Old Town Gateway
Landscaping; (3) Old Town Demonstration Block, including the Front Street
repairs/upgrades, Front Street reconstruction, miscellaneous street improvements; (4) Old
Town Sewer Improvements; (5) Old Town Water Improvements; and (6) Old Town Storm
Drain Improvements, as more particularly defined in Section 4.2. Section 4.2 also provides
that the Agency itself will provide the following Public Improvements: (1) Main Street
Bridge improvements, at its discretion; (2) Sixth Street Parking improvements; and (3) Main
Street facades and non-conforming sign removal as more particularly defined in Section 4.2.
(For the purposes of this Resolution, all of the designated public improvements will be
referred to collectively as "Public Improvements.") With respect to the Agency's assistance
for the Public Improvements as described in the Agreement, the City Council hereby finds,
determines and declares that:
a. Providing for such Public Improvements is necessary to effectuate the
purposes of the Redevelopment Plan for the reasons set forth in Section 1.d. and for
the reasons set forth in the Plan and accompanying reports, which specifically
.... os\95-75 -2-
contemplate the construction of such Public Improvements, as well as the findings
made by the Board of Supervisors in adopting the Redevelopment Plan and
subsequently validated in a court challenge.
b. The Public Improvements are of direct benefit to the Project Area and
the immediate area in which the Project is located for the reasons set forth in Section
I.d. and for the reasons set forth in the Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopment Plan and
subsequently validated in a court challenge.
c. No other reasonable means of financing the Public Improvements are
available to the community to finance the Public Improvements based upon the
reasons set forth in the Redevelopment Plan and accompanying reports, which
specifically contemplate the construction of such Public Improvements, as well as the
findings made by the Board of Supervisors in adopting the Redevelopment Plan and
subsequently validated in a court challenge.
d. The payment of funds for the Public Improvements will assist in the
elimination of one or more of the blighting conditions inside the Project Area and is
consistent with the Implementation Plan adopted for the Project Area for the reasons
set forth in Section i.d. and for the reasons set forth in the Plan and accompanying
reports, which specifically contemplate the construction of such Public Improvements,
as well as the findings made by the Board of Supervisors in adopting the
Redevelopment Plan and subsequently validated in a court challenge.
Section 3. It is anticipated that a portion of the Old Town Festival Square and
the Opera House will be situated on a street right-of-way which is owned by the City as the
Square is anticipated to be located between buildings on the parcels comprising the Site and
the Opera House will be situated on more than one parcel. It is also anticipated that the City
will vacate such right-of-way upon the purchase of the surrounding parcels by the
Participant. Pursuant to Section 3.7 of the Agreement, in the event such property does not
belong to the Participant by virtue of the vacation, Agency agrees to acquire such property
from the City in an area not to exceed eight thousand (8,000) square feet and lease it to the
Participant at the annual rent of one dollar ($1.00) per year for fifty (50) years, in
accordance with all applicable laws. The City Council hereby consents to the leases and
finds, determines and declares that, as defined in Health and Safety Code Section 33433, the
fair reuse rental value of such right-of-way property, following vacation and subject to the
limitations of this Agreement, is the rental value described in this Section and further finds,
determines and declares that the lease as described in this Section of the Agreement will
assist in the elimination of blight within the Project Area and is consistent with the
Implementation Plan adopted for the Project Area for the reasons set forth in Section i.d. of
this Resolution.
.... os\95-75 -3-
Section 4. The City Council hereby finds and determines that based upon the
prior Environmental Impact Reports prepared for this Project and the findings made in this
Section, no further environmental review is required for the Project. On June 13, 1995, the
City Council of the City of Temecula adopted Resolution No. 95-49 entitled "A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA CERTIFYING
PLANNING APPLICATION NO. 95-0031 (FINAL ENVIRONMENTAL IMPACT
REPORT) ADOPTING FINDINGS OF FACT AND STATEMENT OF OVERRIDING
CONSIDERATION AND APPROVING THE MITIGATION MONITORING PROGRAM
ON PROPERTY GENERALLY LOCATED WEST OF INTERSTATE 15, EAST OF THE
CITY'S WESTERN BORDER, SOUTH OF RANCHO CALIFORNIA ROAD AND
NORTH OF THE SANTA MARGARITA RIVER" certifying the Environmental Impact
Report for the Project. Additionally, in adopting the Redevelopment Plan, the Board of
Supervisors approved and certified an Environmental Impact Report for the Redevelopment
Plan which specifically addressed the environmental impacts of the Public Improvements
which were also described in the Redevelopment Plan. Therefore, pursuant to 14 Cal.
Admin. Code Section 15180, no further environmental review is required on this Project
unless required by 14 Cal. Admin. Code Sections 15161 or 15163. Neither a subsequent
EIR nor a Supplemental EIR is required for the Project based on the following findings of
the Agency:
a. All of the private elements of the Project and the Public Improvements
were contemplated and fully and properly analyzed in the EIR certified and approved
by the City Council on June 13, 1995 and all of the Public Improvements were also
contemplated and analyzed in the EIR certified and approved as part of the approval
of the Redevelopment Plan.
b. There have been n__o subsequent changes to the Project since June 13,
1995 which would require major revisions of the previous EIR due to the involvement
of new significant environmental effects or a substantial increase in the severity of
previously identified significant effects.
c. Substantial changes have not occurred with respect to the circumstances
under which the Project is undertaken which will require major revisions of the
previous EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified significant effects.
d. There is n__o new information since the certification of the previous EIR
which would show or tend to show that the Project might have one or more
significant effects not discussed in the previous EIR.
e. There is n__o new information since the certification of the previous EIR
which would show or tend to show that significant effects previously examined might
be substantially more severe than shown in the previous EIR.
.... 0a\95-75 4-
f. There is n.__~o new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would substantially reduce one
or more significant effects of the Project.
g. There is n__.~o new information since the certification of the previous EIR
which would show or tend to show that mitigation measures or alternatives which are
considerably different from those analyzed in the previous EIR would substantially
reduce one or more significant effects on the environment.
Section 5. The City Council of the City of Temecula hereby consents to and
approves of the Agency entering into that certain Agreement entitled "Owner Participation
Agreement by and between the Redevelopment Agency of the City of Temecula and
T.Z.B.G., Inc., A California Corporation," dated as of August 31, 1995, in substantially the
form attached hereto as Exhibit A.
Section 6. The City Clerk shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Temecula on the 31st day of August, 1995.
ATTEST:
emans, Mayor Pro Tem
Jun .~Greek, cMc -
City Clerk
[SEAL]
~caos\95-75 -5-
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE)ss
CITY OF TEMECULA)
I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the
Resolution No. 95-75 was duly and regularly adopted by the City Council of the City of
Temecula at an adjourned regular meeting thereof, held on the 31st day of August, 1995, by
the following vote, to wit:
AYES:
4 COUNCILMEMBERS: Birdsall, Lindemans, Parks, Roberts
NOES:
0 COUNCILMEMBERS: None
ABSENT: 1 COUNCILMEMBERS: Stone
~~June S. Greek, CMC
City Clerk
~rsos\95-75 -6-
RECORDED AT REQUEST OF
AND WtjEN RECORDED
RETTJRN TO:
June Greek
Secretary
Redevelopment Agency of the
City of Temecula
43174 Business Park Drive
Temecula, California 92590
EXEMFr FROM KECORDER'S
pursuant to Government Code
Sections 6103 and 27383
OWNER PARTICIPATION AGREEMENT
by nnd between the
Rk~DEVI~IOPMENT AGENCY OF THE CITY OF TEMECULA
and
T.Z.B.G., .INC.
A Cnllfornia Corporation
DATED AUGUST 31, 1995
OLD TOWN ~TAINM~-NT CENTER PROIECT
TEMECULA REDE~OP~
PROJECT AREA 1988-1
LAX2:126~27.9 Pin&: ~ L~, 1V95
OW1N-]~ PARTIC/PATION AC-I~ .~
THIS OWNER PAR~CIPATION AGREEM]~NT is ~nte~d into by and between
the REDEVI;~IOPMENT AGENCY OF THE CITY OF TF. MF_~'~LA (the 'Agency') and
T.Z.B.G., INC., a California Corporation (the 'Participant') and is dated and effective as of
August 31, 1995. In consideration of the mutual covenants and agreements contained herein,
the Agency and the Participant hereby agree as follows:
ARTIC~.~ I
~ OF
Section 1.1 Purvose of A~'eement
A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the
Temecula Redevelopment Project Area 1988-I (hereinafter 'Plan') by providing for the
redevelopment of certain property, herrafter defined in Section 1.3 and referred to as the
Site, in accordance with the Plan. The Plan designates certain properties to which it applies,
hereafter known as the 'Project Area.'
B. This Agreement is entered into for the purpose of redeve, loping the Site and
not for speculation in land holding.
C. Completing the redevelopment on the Site pursuant to this Agreement is in the
vital and best interest of the community served by the Redevelopment Agency of the City of
Temecula and the health, safety, and welfare of the community, and is in accord with the
public purposes and provisions of all applicable State and local laws.
D. Completing the redevelopment of this Site pursuant to this Agreement will
assist in the elimination of blight in the Project Area as identified in the proceedings
establishing the Project Area in that the Project will: (1) provide a broad range of public
service infrastructure improvements to induce private investment in the Old Town Area (as
defined in the Old Town Specific Plan); (2) promote the preservation and enhancement of the
Old Town Area in accordance with the goals and objectives of the Old Town Specific Plan;
(3) promote the expansion of the Project Arm's commercial base and local employment
opportunities to provide jobs for the area; (4) assist in the continued development of the Old
Town Area as a tourist destination and enhancement of the tourist industry as a major force
within the community; (5) encourage and provide for development of vacant properties and
replacement of the older non-historical retail buildings which typify the blight conditions
which exist in the Project Area. Completing the redevelopment of the Site as proposed will
also assist in eliminating blight in the Project Area by generating new employment
opportunities and development opportunities in the Project Area.
E. This Agreement pertains to and affects the ability of the Agency to finance its
statuWry obligations and for all parties to finance and carry out the purposes of this
Agreement and the goals of the Plan and is intended to be a contract within the meaning of
Government Code Section 53511.
LAX~:ITA427.9 Frei: August 1.q, 199~
Section 1.2 T~e Redevelopment Plan
The Redevelopment Plan ('Plan') was approved by Ordinance No. 658 of the Board
of Supervisors of Riverside County on July 12, 1988, prior to incorporation of the City of
Temecula. Pursuant to City Ordinance No. 91-11, which became effective May 9, 1991,
and City Ordinance No. 91-15, which became effective April 9, 1991, the City approved the
Plan. Said Ordinances had the effect of adopting the Plan and transferring jurisdiction over
sa/d Plan to the Agency, as of July 1, 1991. Pursuant to Ordinance No. 9304 and 94.03,
Ordinance No. 91-11 was codified at Section 8.04.010 of the Temecula Municipal Code.
The Plan was.amended by Ordinance No. 94-33, adopted on December 20, 1994.
Section 1.3 The Site
A. The real property to be redeveloped pursuant to this Agreement (the 'Site")
consists of two components. The first component of the Site consists of the Old Town Area
which is that area designated as "Tourist Core Retail" on Exhibit 1, Pwposed Land Use
Districts Map, of the Old Town Spedtic Plan, approved by Ordinance No. 94-05 of the City
Council of the City of Temecula on February 22, 1994, which is on file in the Office of the
City Clerk. The second component of the Site is the Westside Area which is generally
located southwesterly of the Old Town Area and which is specifically ~ on the Study
Area Map, of the Westside Specific Plan, approved by Ordinance No. 95-08 of the City
Council of the City of Temecula on June 27, 1995, which is on file in the Office of the City
Clerk.
B. The Site consists of those Properties within the component areas owned by the
Participant and which will be specifically described and depicted on Exhibit No. 1 and
Exhibit No. 2. The Participant currently h,u an option to purchase certain properties in the
Old Town Area which will comprise a portion of the Site when the acquisitions are complete.
Both parties acknowledge that the terms of this Agreement shall apply only to such properties
az are acquired by Participant. The Executive Director is hereby authorized and directed to
enter into amendments to this Owner Participation Agreement which add specific properties
to the component areas of the Site which Participant may subsequenfiy acquire.
C. The Old Town Area of the Site is located within the Project Area. The
Agency finds that the Westside Area of the Site is located just outside the Project .Area and
will be physically and economically integrated into that portion of the Project located on the
Old Town Area of the Site. The Westside Area will be within Survey Area for possible
inclusion into the Project Arm
Section 1.4 Parties to the Afreement
A. The Agency
The Agency is a public body, corporate and politic, exerci.x/ng governmental functions
and powers and organized and existing under the Community Redevelopment Law of the
State of California (Section 33000, et sea_., Health and Safety Code; hereafter "Act"). The
principal office of the Agency is located at 43174 Business Park Drive, Temecula, C~lifomia
92590.
I..40C2:126427.9 Fired: ~ L$, 19~ '3-
B. The P~rtic/pant
The Participant is a California corporation duly org~ni*ed and existing under the laws
of the State of California. The principal office and mailing address of the Participant is: c/o
Cox, Castle & 1Txcholson, Lewis G. Feldman, Esq., 2049 Century Park East, 28th Floor,
Los Angeles, C~lifomia 90067.
Section 1.5 Prohibition A.aln~ Chan~e in Pnrticil~ntsh~, ]Management and
Control of Participnnt
A. The qualifications and identity of Partialpant is of paniculnr concern to the
Agency since the personal efforts and artistic experience of a significant stockholder of the
T.Z.B.G, Inc., Zev Buffman, are necessary to make the Project economically viable, and the
managerial experience in entertainment projects and financial strength of potential partners of
are also a significant factor in determining the viability of the Project. It is because of its
qualifications and identity that the Agency has entered into this Agreement with the
Participant. Therefore, no voluntary or involuntary su~ in interest of the Participant
shall acquire any rights or powers under this Agreement except as expressly set forth herein.
The sale of a controlling interest in Participant shall constitute a voluntary conveyance of
Participant requiring Agency consent or compliance with Subparagraph B. of this Section.
B. The Participant shah not assign all or any of its rights or duties under this
Agreement, nor convey the Site, nor convey a controlling interest in Participant without the
prior written approval of the Agency, which consent shah not be unreasonably withheld
provided the Agency determines that the successor is similarly qualified based upon its
experience in entertainment projects and its financial strength and has specifically agreed in
writing to be bound by the provisions of this Agreement, except as provided in this Section.
The Agency, however, hereby consents to Participant's assignment of all or any of its rights
or duties under this Agreement, the conveyance of the Site, or the conveyance of a
controlling interest in Participant provided that: (1) Zev Buffman maintains active artistic
supervision of the Project during the period of three years following issuance of the
Certificate of Completion; (2) at all times a duly authorized representative is appointed to
bind the Participant with respect to matters involving the Agency and the City and the terms
of th/s Agreement; (3) any such representative, assignee or successor specifically agrees in
writing to be bound by the terms and provisions of this Agreement through an assignment
and assumption agreement appwved by the Executive Di~ctor of the Agency and the Agency
General Counsel; and (4) all security for financing the Entertainment Facilities and Public
Improvements and other interests in the Site are subordinate to tiffs Agreement so that all
assigns of and successors in interest to Participant are bound by the terms of this Agreement.
The Participant shall notify the Agency of the name, address, telephone, and fax number or
the person authorized to speak for and bind the Participant as described in the preceding
sentence. The condition upon sale or assignment requiring that Zev Buffman maintains
active artistic supervision of the Project shall terminate at the end of the third year of
operation of the Projea.
C. All of the terms, covenants and conditions of this Agreement shah be binding
upon and shall inure to the benefit of the Agency, the Participant and the permitted
successors and assigns of the Participant. Whenever the term "Participant" is used herein,
LAX~:126~27.9 !final: A~gust 1~, 199~
such term shah include any other lawful successors in interest and assigns of Participant and
any assignees approved by the Agency.
D. Agency may terminate this Agreement pursuant to Section 6.7 if Participant
violates the terms of this Section.
Section 1.6 Contract f)Oct,ments
The Conreact Documents which ar~ part of this Agreement, and each of which are
incorporated herein by this r~ference, are as follows:
Exhibit No. 1
Exhibit No. 2
Exhibit No. 3
Exhibit No. 4
Legal ~ption of Site
Description of Public Improvements
Form of Certificate of Completion
ARTICLE 1I
DEVEI.OPMENT OF THE SITE
Section 2.1 Scope of Development
A. The Project consists of two components - the "Entertainment Facilities" and
the *Public Improvements."
1. As used in this Agreement the "Entertainment Facilities" means the
land acquisition, design and construction of the following: (1) The Opera House; (2)
Wild West Arena; (3) virtual reality theaters; (4) caharet/playhouse theaters; (5)
"quick draw" and indoor/outdoor exhibitions; (6) restaurants; (7) theme rehted retail;
(8) Old Town Festival Square, and (9) parking facilities. These descriptions are for
the purpose of defining those portions of the Project for which Participant shall have
responsibility for land acquisition, financing, design and construction as mor~
specifically set forth in this Agreement. Participant shall have the right to rename
these components of the Project for marketing purposes. The parties shall continue to
negotiate to determine the extent to which the parking facilities may be made available
to the general public.
2. As used in this Agreement the "Public Improvements' means the land
acquisition, design and the construction, expansion or renovation of the following:
(1) Renovation and expansion of the Old Town First Street Bridge; (2) Old Town
Gateway Landscaping; (3) Old Town Demonstration Block, including the Front
Street re-pairs/upgrades, Front Street r~construction, miscellnneous streei
improvements; (4) Old Town Sewer Improvements; (5) Old Town Water
Improvements; and (6) Old Town Storm drain improvements.
3. The Western Bypass Corridor will be built as pan of an assessment
district described in Section 4.3 of this Agreement. Agency shall be responsible for
the land acquisition, design and the construction, expansion or renovation of the (1)
Main Street Bridge improvements, at its discretion, (2) Sixth Street Parking
improvements, and (3) Mnin Street facades and non-conforming sign removal as more
specifically described in Section 4.2,
4. The facilities listed in ~his subsection are more specifically deskbed in
Exhibit 3, Description of Public Improvements.
B. The estimated cost of the Public Improvements is five million nine hundred
eighty seven thousand seven hundred dollars ($5,987,700.00). The Public Improvements
shall be paid for by the Agency as more specifically provided in Section 4.2.
C. The Site shah be developed within the controls established in the land use
entitlements approved by the City and as required by the Temecula Municipal Code, and
rehted hws governing municipal planning, zoning and subdivision.
Section 2.2 Construction Schedule
The Participant shall promptly begin and thereafter diligently work to complete the
construction of the Entertainment Facilities upon the Site and the Public Improvements in
accordance with the requirements of the land use entitlements upon completion of all of the
following events:
Participant obtains financing for the Entertainment Facilities, if available on
terms satisfacWry to the Participant in its sole discretion; and
Bo
Participant receives the Agency's payment of five million nine hundred
thousand eighty seven thousand seven hundred dollars ($5,987,700) in
accordance with Section 4.2 hereof; and
C. Participant obtains ownership of the Site.
Section 2.3 Project Parkin; Facilities '
A. Parking facilities constructed and operated on behalf of the Participant for the
Entertainment Facilities shall be available under the same terms and conditions to customers
and visitors to the Old Town Area regardless of whether the customer or visitor is a patron
of the Project.
B. The Agency and Participant shall negotiate in good faith for the adoption of a
Parking ~ement Plan for the Old Town Area. The Parking Management Plan shall:
(1) Identify parking facilities other than those owned by the Participant which might be
available for use in conjunction with the Entertainment Facilities; (2) provide for joint use at
off-peak times and for special events; and (3) provide for a validation or similar system to
accommodate the varying parking needs of the merchants within Old Town Area with the
parking needs of the Entertainment Facilities. All parking revenues from the parking
constructed as pan of the Entertainment Facilities shall be the property of the Participant.
LA.X2:12642'/.9 Final: ~ 1~, 1995
Section 2.4 '!ndemni~y *nd lnmrance
A. The Participant shall defend, indemnify, assume all responsibility for and hold
the Agency and the City, and their respective elected and appointed officers and employees,
harmless from all costs (including reasonable attorneys fees and costs), claims, demands or
iinhilities judgments for injury or damage to p~ and injuries to persons, including
death, which may be caused by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the Participant or anyone directly
employed or contracted with by the Participant and whether such damage shall accrue or be
discovered before or after termination of this Agreement; provided, however that the
Participant .~hnll not be required to indemnify or hold Agency harlD. less for injuries resulting
from the negligence or wllful misconduct of the Agency, its elected or appointed officials,
and employees. This indemnity includes, but is not limited to, any repair, cleanup,
remediation, detoxification, or preparation and implementation of any removal, remedial,
response, closure or other plan (regardless of whether undertaken due to governmental
action) concerning any hazardous substance or hazardous wastes including petroleum and its
fractions as defined in the Comprehensive Environmental Response, Compensation and
Liability Act ["CERCLA"; 42 U.S.C. Section 9601, et ~.], the Resource Conservation and
Recovery Act ['RCRA"; 42 U.S.C. Section 6901 et ~.] and California Health and Safety
Code Section Code Section 25280 et ~al. at any place where Participant owns or has control
of real property pursuant to any of Participant's activities under this Agreement. The
foregoing indemnity is intended to operate as an agreement pursuant to Section 107 (e) of
CERCLA and California Health and Safety Code Section 25364 to assure, protect, hold
harmless and indemnify Agency from liability. In the event an assignment has been duly
made pursuant to the provisions of Section 1.5 of this Agreement, the Assignor shall not be
required to indemnify the Agency for acts or omissions which occur following the date of the
assignment which are not committed or omitted by the assignor.
B. The Agency shall defend, indemnify, assume all responsibility for and hold the
Participant, and its respective officers and employees, harmless from all costs (including
attorneys fees and costs), claims, demands or liabilities judgments for injury or damage to
property and injuries to persons, including death, which may be caused by Agency's actions
or inactions in carrying out its obligations pursuant to this Agreement, whether such activities"
or performance thereof be by the Agency or anyone directly employed or contracted with by
the Agency and whether such damage shall accrue or be discovered before or after
termination of this Agreement; provided, however that the Agency shall not be required to
indemnify or hold Participant harmless for injuries resulting from the negligence or wilful
misconduct of the Participant, its officers and employees.
C. Insurance
1. Not in derogation of the indemnity provisions of subsection A of this
Section, the Participant shall take out and maintain during the period set forth in
Subsection C.4., a comprehensive liability policy in the amount of at least Three
Million Dollars ($3,000,000) for any person, Five Million Dollars ($5,000,000) for
any occurrence, and One Million Dollars ($1,000,000) property damage naming the
City and Agency as additional insureds.
L.s0C2:126427.9 Fi,~- A~m~ 15, 1995 -7-
2. The Participant shah furnish an endorsement of the policies signed by
an authorized agent of the insurance carrier setting forth the general provisions of the
insurance coverage and including the matters required by this Agreement. This
endorsement shall name the City and the Agency and, if available, their ~ective
officers, agents, and employees as additional insureds under the policy. The
endorsement shall conlain a statement of obligation on the part of the cartier to notify
the Agency by certified mail of any modification, cancellation or termination of the
coverage at least thirty (30) days in advance of the effective date of any such
modification, cancellation or ~ermlnntion. Coverage provided hereunder by the
Participant shall be primary insurance and not contributing with any insurance
maintained by the Agency or City, and the policy shall contain such an endorsement.
The required endorsement shall be filed with the Agency prior to commencement of
construction.
3. The Participant shall also furnish or cause to be furnished to the
Agency evidence satisfactory to the Agency that any contractor with whom it has
contracted for the performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as req 'utred by law.
4. The insurance obligations set forth in this Section shall remnin in effect
only until a final Certificate of Completion has been furnished for all of the
impwvements as hereafter provided in this Agreement.
5. Without affecting any other rights or remedies under this Agreement, ·
each party hereby waives its right of subrogation against the other for claims which
may be paid pursuant the insurance required pursuant to this Section.
Section 2.5 City and Other Governmental Agency Permits
A. Before commencement of construction or development of any buildings,
structures or other work of improvement the Participant shall, at its own expense, secure or
cause to be secured any and all permits which may be required by the City and any other
governmental agency having jurisdiction as to such construction, development or work. The
parties hereby agree that nothing in this Agreement shall restrict in any way the discretion of
the City Planning Commission, City Council, or the City itself to approve, conditionally
approve or deny any land use entitlement required for the Project in accordance with
applicable law. Agency shall assist the Participant in obtaining prompt and expeditious
processing of its permit applications on a "fast track" basis. ·
B. The Participant assumes nil responsibility for taking all actions within its
control necessary to comply with the Subdivision Map Act (Government Code § 66410, et
s~_.) and local subdivision enactments related thereto with respect to the Site.
Section 2.6 Antidiscrimination Durin, Con,ruction
The Participant, for itself and its successors and assigns, agrees that in the
construction of the Entertainment Facilities and Public Improvements provided for in this
Agreement, the Participant shall not discriminate against any employee or applicant for
LAX2:12642'/.9 !rm~ A4~t 1~, 19~ -8-
employmenrbecause of race, color, creed, religion, age, sex, marital status, handicap,
national origin or ancestry.
Section 2.7 Certificate of Completion
A. After completion of all consuuction and development of the Public
Impwvements in the manner required by this Allreement, the Agency shall furnish the
Participant with a Certificate of Completion within ten (10) business days of written request
therefor by the Participant. The Agency shall not unreasonably withhold any such Cert/ficate
of Completion, Such Certifi~ of Completion shall be a conclusive determination of
satisfactory completion of the construction of the Public Improvements as required by this
Agreement and the Certificate of Completion shall so state. After recordation of such
Certificate of Completion, any party then owning or thereafter purchasing, leasing or
otherwise acquiring any interest in the Site shall not (be~___u~ of such ownership, purchase,
lease or acquisition), incur any obligation pursuant to this Agreement for the construction of
the Public Improvements.
B. The Certificate of Completion shall be in such form as to permit it to be
recorded in the Recorder's Office of Riverside County. The Certificate of Completion shall
be in substanti:~!!y the form attached hereto as Exhibit 4.
C. If the Agency refuses or fails to furnish a Certificate of Completion, or part
thereof, after written request from the Participant, the Agency shall, within ten (10) business
days of written request therefor, provide the Participant with a written statement of the
reasons the Agency refused or failed to furnish a Certificate of Completion. The statement
shall also contain Agency's opinion of the actions the Participant must take to obtain a
Certificate of Completion. If the reason for such refusal is confined to the immediate
availability of specific items of materials for landscaping or due to the fact that certain
*punch list* list items which would not prevent the safe and reasonable use of the
improvements, as determined by the Agency in its reasonable discretion, are not yet
completed, the Agency shall issue its Certificate of Completion upon the posting of a bond
by the Participant with the Agency in an amount representing a fair value of the work not yet ·
completed. If the Agency shall have failed to provide such written statement within said ten
(10) business day period, the Participant shall be deemed entitled to the Certificate of
Completion.
D. Such Certificate of Completion shall not constitute evidence of compliance
with or satisfaction of any obligation of the Participant to any holder of any deed of trust
securing money loaned to finance the impwvements, or any pan thereof. Such Certificate of
Completion is not a notice of completion a~ referred to in the California Civil Code, Section
3093.
LAX2:126427.9 Fimk Aaguf~ 15, 1995 _~.
ARTICLE m
I. ISE OF THe- srrE
Section 3.1 Uses
The Partialpant covenants and agrees for itself, its successors, its assigns, and every
successor in interrot to the Site or any part thereof, that during construction and until the
covenants hereunder terminate pursuant to Section 3.10, the Participant, and such successors
and such assignees, shall devote the Site to use as an entmainment facility consisting of the
following: (1) The Opera House; (2) Wild West Atma; (3) virtual reality theaters; (4)
cabaret/playhouse theaters; (5) "quick draw" and indoor/outdoor exhibitions; (6) restaurants;
(7) theme related retail; (7) Old Town Festival Square; (8) parking facilities; and such uses
as are compatible with and substantially similar to such uses.
Section 3.2 Project Name to Include SOld Town Temecula:s Advertising of
General g. vel~ts
Participant shall include the name "Old Town Temecula" in 'the legal and operating
name of the Entertainment Facilities and in aH written and television advertising and
promotional materials, and where commercially and artistically pmc6ml, radio advertising,
disseminated for the Entertainment Facilities. The Participant's advertising, publicity and
promotional programs shall include, whenever pos~'ble, and appropriate in the Participant's
reasonable judgment, notice of general events, festivals, and retail opportunities available in
the Old Town Area.
Section 3.3 Pro!~rnmminf for Entertainment Facilities
Participant shah mnk~ every effort to provide diverse programming of a commercially
reasonable nature for the Entertainment Facilities reflecting a cross-section of regional
community entertainment preferences.
Section 3.4 Rent Free Availability of Entertninment Facilities to Certnin City
Non-profit Groups
The Entertainment Facilities, excluding parking, shall be made available rent free for
non-competing public non-profit use by local theater and arts organizations for a minimum of
forty (40) days per year, in accordance with a scheduled approved by the Agency and the
Participant, with such uses being subject to Participant's determination of availability and
conflicts of the venues, which determination shall be exercised in a reasonable manner. Any
time that any one of the Project's theaters or other private facilities is used by an individual
or group for any time on a given day, then such usage shall be counted towards the 40 day
minimum requirement.
Section 3.5 Entertainment Facilities to Provide Fducational Component
Participant shall include in the operations of the Entertainment Facilities, an
educational component which will provide opportunities for performing arts education for
local area residents.
Section 3.6 F. nter~n!nment F~cilitle~ H!ring Policies
To the extent permitted by hw, Participant shall adopt hiring policies for the
Entertainment Facilities which provide a preference to local a~a t~idents.
Section 3.7 Old Town Festival Situnto
A. The Participant ~ acquire the land and design, construct, operate and
control, a portion of the Site to be known as the "Old Town Festival Square." The Agency
shall approve the specific size and location of th~ Old Town Festival Squa~, which appwval
shall not be unreasonably withheld. The Agency shall approve any change in the size,
location, or use of the Old Town Festival Square other than as set forth in this Section. Such
approval shall not be unreasonably withheld provided that an alternate site for the Old Town
Festival Square is available and the alternate is comparable in terms of size, location,
improvements and function to the designated location.
B. The Old Town Festival Square shall be used for.. (1) special events related to
the Entertainment Facilities, which may or may not r~quire an sdmis$ion fee (including
without limi_mtion, wine festivals, shows, exhibits); (2) entertainment; (3) picnics, receptions
and similar activities; (4) landscalc~l rest areas; or (4) revenue generating activities.
C. The Old Town Festival Square or a portion thereof shnll be available for use
without an admission charge at least ten (10) hours per week in accordance with a schedule
approved by the Agency and Participant, which approvals shall not be unreasonably
withheld.
D. It is anticipated that a portion of the Old Town Festival Square and the Opera
House will be situated on street right of way which is owned by the City as the Square is
anticipated to be located between buildings on the parcels comprising the Site and the Opera
House will be situated on more than one parcel. It is also anticipated that the City will
vacate such right of way upon the purchase of the surrounding parcels by the Participant. In
the event such property does not belong to the Participant by virtue of the vacation, Agency
agrees to acquire such property from the City in an area not to exceed eight thousand (8,000)
square feet and lease it to the Participant at the annual rent of one dollar ($1.00) per year for
fifty (50) years, in accordance with all applicable laws. The parties agree that,. as defined in
Health and Safety Code Section 33433, the fair reuse rental value of such right-of-way
property, following vacation and subject to the limitations of this Agreement, is the rental
value described in this Section.
Section 3.8 Arency Guidelines for Consideration of Other Entertainment
Related Facilities
A. The Agency and Participant r~.ognize that certain impacts upon the community
could occur if additional entertainment-r~lated facilities within the City are not carefully
planned. Therefore, the Agency shall establish administrative guidelines with which all
future entertainment- related development, .within the City of Temecula must comply, tni~ng
into consideration the needs, goals and plans of the Entertainment Facilities and the
community. The Agency will consult in good faith with the Pa~cipant prior to proposing
such administrative guidelines and prior to considering future entertainment related facilities
affecting the Old Town Area. The guidelines may specify the following development
criteria:
1. Architectural design guidelines;
2. Use guidelines which would not only assure consistency of uses but
also be intended to avoid duplication of uses to insure that a variety of complimentary
services are available to the public;
3. Criteria concerning themes, quality of services and products, developed
for entertainment-related businesses; and
4. Proposed geographic locations for entertainment- related uses, as ~
defined in the guidelines, designed to avoid the proliferation of such uses in areas
without adequate traffic capacity, or otherwise unsuitable, including, without
limitation, overlay zoning districts, the requirement for a special use permit, or other
provisions for separation between facilities and incompatible. uses.
B. The parties acknowledge and agree, however, that this Agreement does not
restrict the discretion of the City Planning Commission, City Council, Redevelopment
Agency Board, or the City or the Agency itself, to approve, approve with conditions, or
deny the proposed guidelines or any proposed entertainment-related project and that any such
project shall be reviewed and considered in accordance with applicable law.
Section 3.9 Covenants for Non-Di~crlmination
A. The Participant covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons on
account of race, color, creW, religion, sex, marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, nor shall the Participant itseft or any person claiming under or through it establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site.
B. The Participant shall refrain from restricting the rental, sale or lease of the
Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin
or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for himself or herself,
his or her heirs, executors, administrators and assigns, and all persons claiming under
or through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital
status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing covenants shall run
with the land. ·
2. In leases: 'The lessee herein covenants by and for himseft or herself,
his or her heirs, executors, administrators and assigns, and all persons claiming under
or through him or her, and this lease is made and accepted upon and subject to the
following conditions:
'There shall be no 'thscrimination against or segregation of any
person or group of persons on account of race, color, creed,
origin in the leasing, subl~-6qg, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor shall the
lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees in the premises herein
leased.'
3. In contracts: "Them shall be no discrimination against or segregation
of, any person, or group of persons on account of race, color, creed,' religion, sex,
marital status, handicap, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of 'discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the premises."
C. The covenants established in this Section shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in interest to the Site or any pan thereof.
The covenants, contained in this Section ~all remain in perpetuity.
Section 3.10 Continuation of Covenants
A. Of the covenants which have been established pursuant to this Agreement, the
same shaU be deemed to be covenants running with the land for the benefit of the Site, the
Project Area and the Agency in carrying out its statutory responsibi.Uties under California
Redevelopment Act (Health and Safety Code Sections 33000 et aitl.) to implement the
Redevelopment PLan. The burdens of the covenants are imposed on the Site and the
Agency's intorests in the Project Area. The covehants contained in this Agreement shall be
binding for the benefit of the Site, the Project Area and the Agency and its successors and
assigns, and such covenants shall nm in favor of the Agency for the entire period during
which such covenants shall be in force and effect, without regard to whether the Agency is
or remains an owner of any land or interest therein to which such covenants relate.
B. The covenants described in Article H of this Agreement shall expire upon the
issuance by Agency of a Certificate of Completion as to the Site. The covenants against
discrimination contained in Section 3.09 of this Agreement shall remain in perpetuity. All
other covenants contained in this Agreement, except for the covenants contained in Section
4.6, Participant Payment of Costs of Increased City Services Resulting From the Project, and
Section 4.7, User Charge Upon Tickets Sold, shall expire at the end of the twentieth (20th)
year following issuance of a Certificate of Completion for the Site. The covenants contained
in Sections 4.6, Participant Payment of Costs of Increased City Services, and 4.7, User
Charge Upon Tickets Sold, shall expire at the end of the fiftieth (50) year following the first
performance at a theater on the Site.
C. .The Agency, in the event of any breach of any such covenants, shall have the
right to exercise all of the rights and remedies, and to maintain any actions at law or suits in
equity or other proper proceedings to enforce the curing of such breach. The covenants
contained in this Agreement shall be for the benefit of and shall be enforceable only by the
Agency and its successors.
ARTICLE IV
FINANCING OF PUBLIC IMPROVEMF. NTS AND PAYMENTS TO AGENCY
Section 4.1 Responsibilities For Financing Entertainment Facilities and Public
!mprovements
A. Participant shall assume sole and full responsibility and all financial risk for
financing the land acquisition, design, construction, and operation of the Entertainment
Facilities (as defined in Section 2.1.A. 1. of this Agreemen0 and the Public Improvements (as
der'reed in Section 2.1.A.2 of this Agreemen0 and necessary fixtures and equipment. The
Agency shall not assist in the financing of the Entertainment Facilities.
B. Agency shall assume sole and full responsibility and all financial risk for the
land acquisition, design and the construction, expansion or renovation of the (1) Main Street
Bridge Improvements, provided, however, that Agency retains sole discretion to determine
whether to proceed with this improvement, (2) Sixth Street Parking improvements, and (3)
Main Street facades and non-conforming sign removal as more specifically described in
Section 4.2. The budget for these three improvements shall be limited to three hundred
seventy five thousand dollars ($375,000.00) for the Main Street Bridge Improvements, three
hundred seventy five thousand dollars ($375,000.00) for the Sixth Street Parking
Improvements, and two hundred seventy five thousand dollars ($275,000.00) for the Main
Street Facades and Non-Conforming Sign Removal, unless the Agency determines in its sole
discretion that additional monies are available therefore. The design of the improvements
shall take into account the limits of this agreed budget so that the ultimate cost of the design
and construction of the improvements does not exceed the financial limitation.
C. The Western Bypass Corridor will be financed through and built as part of an
assessment district described in Section 4.3 of this Agreement.
Section 4.2 Construction of Public Improvements by Participant
A. In consideration of the payment of the sum of five million nine hundred eighty
seven thousand seven hundred dollars ($5,987,700.00) by the Agency to the Participant, the
LA. X2:126427.9 Final: Au~,ua 15, 1995 -14-
Participant shall design, acquire land, construct and ~ all of th~ Public Improvements at
its sole risk, cost, and expense, in accordance with the terms of this Agreement. In the
event the Participant elects to finance the Public Improvements by a commllnity facilities
district, however, the Agency and Participant shall in good faith negotiate an amendment to
this Agreement providing for the acq~i.~tion of land for the Site and the conveyance of said
land to Participant with a value of not more than $5,487,700 upon terms acceptable to both
B. Participant shall design the Public Improvements, except for the Western Bypass
Corridor. Agency staff and Participant's design staff shall cooperate in the preparation of the
plans and specifications. Participant shall submit to the Agency plans and specifications for
the Public Improvements. Participant shall pay for the preparation of such plans and
specifications. Agency shall cause the approval by the responsib~ agencies of the plans and
specifications as expeditiously as possible following submittal.
C. The Public Improvements shall be bid in accordance with the provisions of the
Public Contracts Code and applicable law for public works for cities, including but not
limited to the requirements of performance and labor and material bonds. Participant shall
pay prevailing wages for the construction of the Public Improvements in accordance with
applicable law.
D. Participant shall be solely responsible for all cost overruns or expenses
incurred in building the Public Improvements in excess of the Agency's contribution of
$5,987,700. Participant shall also be solely responsible for any claims which may be made
by the contractors for the work performed. Further, Participant sbn!! be solely responsible
for complying with all requirements for completion of the Public Improvements required by
the land use entitlements for the Project. In the event the bids are less than the Agency's
contribution, the difference between the amount of the bids, including a customary and
reasonable construction management fee, shall be paid to the Agency within thirty (30)
calendar days of notice from the Agency.
E. Agency shall pay the sum specified in Subparagraph A to Participant upon ten
(10) business day's written notice following completion of the following events:
1. The financing for the Entertainment Facilities has closed or the Agency
determines in its sole and unfettered discretion that commitments are in place that
assure the closing; and
2. Participant has fully executed construction agreements for the
construction of the Public Improvements, which agreement for the Public
Improvements shall be consistent with the provisions of this Article;
F. Participant shall commence construction of the Public Impwvements within
thirty (30) calendar days of receipt of funds unless such time is extended by the Executive
Director of the Agency.
G. In the event this Agreement is terminated prior to the commencement of the
construction of the Public Improvements, Agency agrees to purchase from Participant the
plans and specifications and work in progress for the design of the Public Improvements and
all dock_merits, reports, calculations, data and other ~,,s~rs prepared in the course of
desi?ing the Public Improvements ("Design Work"). The purchase shall occur at a time
designated by the Agency within three (3) years from the date of termination of the
Agreement. The purchase price shall be the actual cost of the De,sign Work not to exceed
five hundred thousand dollars ($500,000.00) which shall be calculated on the basis of (1) the
actual time incurred which was reasonably necessary ~o complete the Design Work, (2) the
actual charges which were reasonably necessary to complete the Design Work, and O) a
schedule of rates and charges submitted to the Agency by the Participant and agreed to by
the Agency's Executive Director on or before the date of this Agreement. If the schedule of
rates and charges are not approved by the Executive Director prior to the effective date of
this Agreement, Agency shall not be obligated to purchase the Design Work.
Section 4.3 Western Bvi;m~_ Assessment nistrlct
A. Agency agrees to cause to be initiated and will diligently pursue the formation
of an assessment district to fund the costs of land acquldtion and constnwtion of the Western
Bypass Corridor on or before January 10, 1996 with the issuance of assessment district bonds
on or before March 1, 1996, in accordance with applicable State and federal law.
B. No commercial, industrial or residential structures on property within the Old
Town Area (as defined in the Old Town Specific Plan) existing as of the date of this
Agreement, shall be :~.~sessed for the Public Improvements. Future buildings in the Old
Town, whether commercial, industrial, or residentinl, approved by the City on or after the
date of this Agreement shall also be assessed for the Western Bypass Corridor.
C. Participant, on behalf of itseft, its successors and assigns, hereby
acknowledges that development of the Site will have an impact on waffic in the region and
the Site will benefit from the construction of the Western Bypass Corridor and therefore
agrees and offers to participate in, and waives all rights to object to the formation of an
assessment district for the construction of the Western Bypass Corridor.
Section 4.4 Community Facilities Di~rict
Agency agrees to cause to be initiated and will diligently pursue the formation of a
community facilities district to assist Participant's obligations to fund the costs of land
acquisition and construction of eligible public facilities in accordance with the procedures of
applicable state and federal law. Agency shall approve the financing team for the community
facilities district, with input from the Participant.
Section 4.5 Relocation of Person~ Displaced by the Project
Participant shall pay such relocation benefits as are required by hw. The Executive
Director shall approve all relocation payments and settlements made by the Participant and
all informational and settlement documents prior to use by the Participant in connection with
the administration of the relocation efforts. Participant shall indemnify Agency pursuant to
Section 2.4 for any payments, obligations, or litigation which may arise out of or be related
to any actions or inactions relating to the relocafion requirements of this Agreement.
Section 4.6 User Charge Upon Tickets Sold
A. In order to assist the Participant's private financing of the Entertainment
Facilities with a committed revenue source and to assist the Agency and the City with
expenses each will incur with respect to this Project and its impact upon the community, the
parties hereby agree to establish and maintain a user charge upon each ticket sold for the
Project in the amount of eight and three quarters percent (8 3/4%) of the face amount of
each ticket sold for events on the Site (hereinafter "User Charge').
1. The User Charge, shall not be considered a tax or fee of the Agency or
City, and may be committed or pledged by the Participant to the financing for, or the
refinancing of, the Entertainment Facilities, if necessary to make up the difference
between the costs of the Project and the available revenues from the Project, for a
period of thirty five (35) years from the date of the closing of the financing of the
Entertainment Facilities.
2. Following the period of thirVy five 05) years from the date of the
closing of the financing of the Entertainment Facilities, a portion of the User Charge
shall be paid to the Agency as follows:
(a) Beginning in the thirty sixth (36th) year and concluding at the
end of the fiftieth (50th) year from the date of the closing of the financing of
the Entertainment Facilities, Participant shall pay to the Agency the amount of
the User Fees received up to two million dollars ($2,000,000.00) per year,
subject to the increase in this amount set forth in Subparagraph 2.(c);
(b) During such period, Participant shall retain the amount of the
User Fees received in excess of $2,000,000 per yea/t;
(c) Beginning in the thirty seventh year (37th) year and each
succeeding year thereafter, the amount of the $2,000,000 limititation shall be
increased by a percentage equal to the average increase in ticket prices for
events on the Site during the prior year.
suspended for
admissions to
The operation of this Section and the collection of the User Fees shall be
such period of time as there is in effect a valid admissions tax upon tickets or
the events on the Site imposed by State or local authorities.
Section 4.7 Participant Payment of Costs of Increased City Services Resultinq
From the Project
A. Participant agrees to design the Project and implement operational programs
for the Project so as to reduce the impact of the Project upon City services, as more
specifically set forth in the Scope of Development. Despite these design and operational
programs, it is possible that the Project could create the need for new and additional City
services at costs greater than the public revenues generated by the Project. Recognizing this
possibility, Participant therefore agrees to meet and confer with the City and the Agency on a
monthly basis to determine the need for new and additional City services related to the
I. AX2:126427.9 Fiml: A~,,a IS, I~S -17-
Project and the costs of such services and Participant and Agency agree to negotiate the
issues described in this Section in good faith.
B. Participant agrees to pay to the Atency monthly, for reimbursement to the
City, an mount equal to the difference between the actual costs of dty servic~ resulting
from the operation of the Project ('City Service Costs') and the revenue received by the City
and the Agency from the Site ('Project Revenues') pursuant to the terms of this Section
(hereafter 'Participant's Reimbursement Payment'). The Participant's Reimbursement
Payment shall continue for a period of forty (40) years from the date of the first performance
at the Entertainment Facilities.
C. During the first six month period following the issuance of the Certificate of
Completion, reprmentatives of the Agency and Participant shall meet and confer in good:
faith each month to determine (1) the City Service Costs for the month, (2) the methods by
which the operations of the Project can reduce any such impacts, (3) the Panidpant's
Reimbursement Payment for the month. The Participant shall pay to the Agency the
Participant Reimbursement Payment for the month. Participant shall pay the amount due to
the Agency not later than the 20th day of the month, or the next succeeding business day
thereafter, and the Agency sb~11 th~ transfer such amount to the City. A late charge in
the amount of one and one half percent (1.5 %) of the amount due shall be imposed if not
received by said date and said hte charge shall continue each month until the full amount of
the Participant Reimbursement Payment is paid.
D. At the end of the first six (6) month period of operation, and at the end of
each six (6) month period thereafter, representatives of the Agency, City and Participant
~ meet and confer in good faith to determine the monthly Participant Reimbursement
Payment based upon City Service Costs and Project Revenues during the preceding six month
period.
1. The municipal services to be considered in determining City Service
Costs are: (1) Police services; (2) fire and paramedic services; (3) Participant's
proportionate share of a pavement management and street maintenance cost of the
streets adjacent to the Site based upon the trips to and trips generated from the Site to
other traffic on the streets adjacent to the Site.
2. The revenues which shall be considered in determining Project
Revenues shall be: (1) Transient occupancy tax revenue actually received by the City
from the Site and any hotel built on the Westside Area, as defined in Section 1.3,
whether or not owned by Participant; (2) sales tax revenue actually received by the
City from the Site; and (3) tax increment revenues actually received by the Agency
from the Site. No other sources of revenue from the Entertninment Facilities or the
Site shall be considered in this analysis.
3. Participant shall receive a credit of Project Revenues for future six
month periods if in any one six month period Project Revenues exceed the City
Service Costs.
4. The det~-.inntlon of the revised Parti~t R~imbursement Payment
~nll be completed on or before the tenth (10th) business day following the end of the
six month period.
5. In the event the representatives of the Participant and the Agency Staff
do not agree upon the amount of the Participant's R~imbursement Payment for next
the six month period prior to the tenth (10th) business day following the end of each
sixth month period, the respective positions of the Participant and Staff shah be
presented to the a neutral arbitrator for a decision as to the appropriate amount of the
Participant's Reimbursement Payment for the succeeding six month period. The
parties shall agree upon an arbitrator, but if the parties cannot agree upon a neutral
arbitrator, a retired judge ~nll be l~..lec~d by the Judicial Arbitration and Mediation
Service to decide the matter. The fees and expenses of the arbitrator shah be divided
evenly between the parges.
6. The Participant's Reimbursement Payment for the preceding six month
period shnli not be alter~ regardless of the revisions to the Participant's
Reimbursement Payment for the next six month period.
7. In the event that a revised Participant Reimbursement Payment has not
been determined pursuant to this subsection by the first day of a new six month
period, the each party shall notify the other of the amount it believes is appropriate
for the new payment. Participant shall pay to the Agency an amount equal to the
amount of the new payment which is not in dispute. Upon resolution of the proper
amount of the new payment for the next period, the Pm'ticipant shall promptly pay
such amounts, if any due the Agency in accordance with the determination of the
monthly amount for the new period.
E. Following the initial six month period from issuance of the Certificate of
Completion, the Agency shall submit an invoice to the Parfici~t on the first business day of
each month in the amount of the Participant's Reimbursement Payment for the new period as
determined by Subsection D. Participant ~nll pay the amount due to the Agency not later
than the 20th day of the month, or the next succeeding business day thereafter, and the
Agency shall th~ transfer such amount to the City. A late charge in the amount of one
and one half percent (1.5%) of the amount due shall be imposed if not received by said date
and said late charge shall continue each month until the full amount of the Participant
Reimbursement Payment is paid.
Section 4.8 Reimbursement of Participant and A~,ency Costs Incurred Prior to
Close of F'mancin~
A. The financing of the Entertainment Facilities may provide for the
reimbursement to Participant of Participant's actual costs paid for development of the Project
and acquisition of the Site prior to the close of the financing including, without limitation:
(1) The cost of architectural, engineering, legal and design fees and other related consultant's
fees; (2) performance and completion bond premiums; (3) property taxes and insurance; and
(4) option payments, purchase payments, escrow and closing fees, and relocation benefits
paid for acquisition of land for the Site.
LAX2:I264T/.9 P'mal: ~ 15, l~n -19-
B. The financing of the Entertainment Facilities or the financing of the Public
Improvements by the Participant shall also provide for the reimbursement to ~he Agency and
the City of the full amount of all fees and costs which the Agency or the City have paid to
Burke, W'gliams & Sorensen and to PMW Assodates, Inc. in connection with the Project,
and such other third party out of pocket costs which the Agency or the Staff has incurred in
connection with its obligations pursuant the Memorandum of Understanding between the
parties dated January 31, 1995.
ARTICL~ V
GENERAL PROVISIONS
Section 5.1 Notices. Demands and Communication.~ Among the Parties
Written notices, demands and communications among the Agency and the Participant,
shall be sufficiently given by personal service or dispatched by registered or certified mail,
postage prepaid, return receipt requested, to the principal offices of the Agency or the
Participant described in Section 1.4. Such written notices, demands and communications
may be sent in the same manner to such other addresses as either party may from time to
time designate by mail as provided in this Section. Notice shall be deemed to have been
received as of the date received in the office of a party as evidenced by the date on the
receipt.
Section 5.2 Conflicts of Interest
The Participant warrants that it has not paid or given and will not pay or give any
officer, employee or agent of the City or Agency any money or other consideration for
obtaining this Agreement.
Section 5.3 Local. State and Federal laws
The Participant shall carry out the provisions of this Agreement in conformity with all .
applicable local, state and federal laws and regulations, including, without limitation, the
such laws and regulations pertaining to the payment of prevailing wages which might be
applicable to its obligations.
Section 5.4 Taxes. Assessments. Encumbrances and Liens
The Participant shall pay when due all real estate taxes and assessments on that
portion of the Site owned by the Participant.
Section 5.5 Enforced Delay: Extension of Times of Performance
A. In addition to specific provisions of this Agreement, performance by either
party hereunder shall not be deemed to be in default, and all performance and other dates
specified in this Agreement shall be extended, where party seeking the extension has acted
diligently and delays or defaults are due to events beyond the reasonably control of the party
such as but not limited to: war; insurrection; strikes; lockouts; riots; floods; earthqtmkes;
fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
I.~Jr,,X2:12642"/.9 Ir-'t' ~ 1'~, 199~ °20-
freight embargoes; intergalactic invasion; lack of transportation; litigation; unusually severe
weather; act of government (except such shall exclude the City or the Agency from using its
own acts, repectively, as a force majeur); change in law (excluding the City or Agency from
enacting or changing hws which excuse performance of their respcctive obligations); or any
other causes beyond the control or without the fault of the party claiming an extension of
time to perform.
B. Notwithstanding anything to the contrary in this Agreement, an extension of
time for any such cause shall be for the period of the enforced delay and shall commence to
run from the lime of the commencement of the cause, if notice by the party clniming such
extension is sent to the other party within thirty (30) days of the commencement of the cause.
C. Tunes of performance under this Agreement may also be extended in writing
by the mutual agreement of the Executive Director of the Agency and the Participant.
Section $.6 Non-Hability of Official.~ and Fmuloyees of the A~encv
No member, official or employee of the Agency or the Cityshall be personally liable
to the Participant, or any successor in interest, pursuant to the provisions of this Agreement,
nor for any default or breach by the Agency.
Section 5.7 In.,~nztion of Bookn and Records
Each party has the right to inspect, at reasonable times, the books and records of the:
other pertaining to the Site as pertinent to the purposes of this Agreement upon 24 prior
hours written notice to Participant.
ARTICLE VI
DEFAULTS AND REM];~w.q
Section 6.1 Defaults - General
A. Subject to the extensions of time set forth in Section 5.3, failure or delay by
either party to perform any term or provision of this Agreement constitutes a default under
this Agreement. A party claiming a default (claimant) shall give written notice of default to
the other party, specifying the default complained of.
B. The claimant shall not terminate this Agreement pursuant to Section 6.7,
institute proceedings against the other party nor be entitled to damages if the other party
within fourteen (14) days from receipt of such notice immediately, with due diligence,
commences to cure, correct or remedy such failure or delay and shall complete such cure,
correction or remedy within thirty (30) days from the date of receipt of such notice. Such
cure, correction and remedy shall include payment of any costs, expenses (including attorney
fees) or damages incurred by the non-defaulting party resulting from the default or during the
period of default. In the event the default is caused by the act or omission of a lessee of the
Participant, Participant shall be deem to be curing the default if the lessee's lease provides
for compliance with the terms of this Agreement and Participant is diligently pursuing its
LAX2:12642'7.9 Final: A"V' ~S, ~ -21-
remedies under the lease to cure the default and completes such cure within the time allowed
by this Agreement.
Section 6.2
I ~,al Actions
A. Institution of { egal Actions
Any legal actions related to or ari~g out of this Agreement must be instituted in the
Superior Court of the County of Riverside, State of California, in an ap~,~,,iate municipal
court in that county, or, if federal jurisdiction exists, in the Federal District Court in the
Central District of C~lifomia, Eastern Division. In the event such litigation is filed by one
party against the other to enforce its rights under this Agreement, the prevniling party, as
detennined by the Court's judgment, shah be entitled to reasonable attorney fees and
litigation expenses for the relief granted.
B. Applicable Iaw
The laws of the State of California shall govern the interpretation and enforcement of
this Agreement.
Section 6.3 Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by the other party.
Section 6.4 Inaction Not a Waiver of Default
Any failures or delays by either party in asserting any of its rights and remedies as to
any default shall not operate as a waiver of any default or of any such rights or remedies, or
deprive either such party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or remedies.
Section 6.S Dama~,es
If a default is not fully cured by the defaulting party as provided in Section 6.1, the
defaulting party shall be liable to the other party for any damages caused by such default,
and the nondefaulting party may thereafter (but not before) commence an action for damages
against the defaulting party with respect to such default.
Section 6.6 Specific Performance
If a default under this Agreement is not fully cured by the defaulting party as
provided in Section 6.1, the nondefaulting party at its option may thereafter (but not before)
commence an action for specific performance of terms of this Agreement.
I. AX2:126427.9 Piml: August IS, 1995
Section 6.7 Remedies and l~itrhts Prior to the Close of F'm*ncin,
A. Termination by the P~rticil;mnt
Prior to the close of the financing of the Entertainment Facilities or the Public
Impwvements or prior to the issuance of bonds for the Assessment District for the Western
Bypass Corridor, the Participant may terminate this Agreement and its obligations hereunder
(subject to Paragraph D below) in the event that:
1. The Agency defaults in the performance of any material obligation
hereunder and such failure is not cured within the time required by this Agreement;
or
2. Participant does not obtain financing for the Entertainment Facilities on
terms and conditions satisfactory to Participant, and Participant returns the amount, if
any, provided to Participant in accordance with Section 4.2 with interest in the
amount of the interest paid on deposits in the Local Agency Investment Fund of the
State of California during the period the Participant held the funds, in which case this
Agreement shall be rescinded in its entirety.
B. Termination by the Al~ency
Prior to the close of the financing for the Entertainment Facilities or the Public
Improvements, whichever occurs first, the Agency may terminate this Agreement and its
obligations thereunder (subject to Paragraph D below) for any of the following reasons:
1. The Participant (or any lawfid successor in interest) assigns or attempts
to assign the Agreement or any rights therein or in the Site in viohtion of this
Agreement; or
2. The Participant defaults in the performance of any material obligation
hereunder and such failure is not cured within the time required by this Agreement.
C. Procedure for Termination
In order to terminate this Agreement prior to conveyance of the Site to Participant for
any reason set forth in Paragraph A or B above, the party proposing to terminate shall
deliver written notice of its intent to do at least fifteen (15) days prior to the proposed date of
termination and stating the reasons for termination. The party proposing to terminate the
Agreement may withdraw the proposed termination or extend the effective date at any time
prior to the effective date of the termination.
D. Consequences of Termination
In the event of termination of this Agreement in accordance with this section, each
party shall have retain any rights or recourse it may have against the other, except in the
event of a termination in accordance with Paragraph A.2. above.
Section 6.8 Conditions Precedent to PnrtieiDnnt's Oh!i~tion.~
Participant's obligations under this Agreement are conditioned upon the sztlsf~ction or
the waiver, in Participant's sole and absolute discretion, of the following conditions
precedent on or before August 31, 1996:
1. The Agency shall not be in default in the performance of any material
obligation under this Agreement and such failure is not cured within any applicable
2. Participant has obtained financing for the Entertainment Facilities upon
terms and conditions reasonably satisfactory to Participant;
3. Agency has obtained, and such funds shall be a~ilnhle tO Participant,
financing for the acquisition and conswaction of the Public Improvements, including
the Western Bypass Corridor, to the reasonable satisfaction of Participant;
4. Participant has obtained the parceh for the Site; and
5. Participant has obtained all necessary governmental permits and
appwvals necessary to perform its obligations under this Agreement.
In the event any of the foregoing conditions precedent have not been sathfied or waived as
provided above, Participant and Agency shall be relieved of all further rights and obligations
under this Agreement, except for (i) the Agency's obligation to refund a portion of the design
and construction cost for the Public Improvements as more particularly described in Section
4.2.G. shall continue in full force and effect, (ii) Participant shall return the amount, if any,
provided to Participant by Agency under Section 4.2 with interest in the amount of interest
paid on deposits in the Local Agency Investment Fund of the State of California during the
period the Participant held the funds, ('di) the indemnification provisions of Section 2.4.A.
and B., and (iv) such other provisions as are intended tO survive termination of the
Agreement. Notwithstanding the foregoing, Participant shall have all of its available rights
and remedies under this Agreement, at law or in equity in the event Participant terminates
this Agreement as a result of an Agency's default in the performance of any material
obligations under this Agreement.
ARTICLE VII
SPECIAL PROVISIONS
Section 7.1 Submission of Documents to the Aeency for Avoroval
Whenever this Agreement requires the Participant to submit plans, drawings or other
documents to the Agency for approval, which shall be deemed approved if not acted on by
the Agency within the specified time, said plans, drawings or other documents shall be
accompanied by a letter stating that they are being submitted and will be deemed approved
unless rejected by the Agency within the stated time. If there is no time specified herein for
such Agency action, the Participant may submit a letter requiring Agency appwval or
rejection of documents within thirty 00) days aft~ submission to the Agency or such
documents shall be deemed approved.
Section 7.2 R~i F.~nte Commi.~Kion
Participant shall pay all dain~ of brokers, agents or finder~, licensed or vnllcensed,
and all claims of real ~ or other con.~ultants which exist or may ~ with respect to the
acquisition of the Site. Agency shall not be liable for any such fees and Participant ~
indemnify Agency, its officers, employees and agents, from any and all costs, liabilities or
judgments, including attorneys' fees, incurred in defending or paying any such claims.
Agency agrees that it will not incur, and represents that it has not incurred, claims of
brokers, agents or finders, consultants and other professionals with respect to the acquisition
of the Site, except as described in Section 4.8.B.
Section 7.3 Entire A~reement. Waivers & General
A. This Agreement is executed in duplicate originals, each of which is deemed to
be an original. This Agreement inciudes pages 1 through 29 and Exhibits 1 through 4,
which constitutes the entire understanding and agreement of the parties.
B. This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties
or their predecessors in interest with respect to all or any part of the subject matter hereof,
including but not limited to the Memorandum of Understanding between the parties dated
January 31, 1995. The Memorandum of Understanding between the parties dated January
31, 1995 is hereby terminated and of no further force and effect.
C. All amendments hereto must be in writing executed by the appropriate
authorities of the Agency and the Participant.
D. Both Parties are sophisticated parties with respect to the matters contained
herein and each have participated with counsel in the d_rafting of this Agreement.
Section 7.4 Tune For Acceptance Of A~'eemem By Afency
This Agreement, when executed by the Participant and delivered to the Agency, must
be authorized, executed and delivered by the Agency on or before th/rty (30) days after
signing and delivery of this Agreement by Participant or this Agreement shall be void, except
to the extent that the Participant shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement. The date of th/s Agreement shall be
the date when it sha~ have been signed by the Agency.
LAX2:12642'7.9 Final: Au[~at I~, 1995
IN WITNESS W/IERF~F, the Agency and the Participant have signed this
Agreement as of the date first written above.
REDEVF~OPMENT AGENCY OF THE
CITY OF TEMECULA
By:
RONALD $. PARKS
Chairperson
A'I'TEST:
JUNE S. GRK~K
Secretary
APPROVED AS TO FORM:
PETER M. THORSON
General Counsel
T.Z.B.G, INC.
By:
LAX2:I2fi427.9 Pimi: Aut~t 15, 199~ -26-
ALL-PURPOSE ACKNOWL~?r)GMENT
Sm~ of Ca~forn~ )
County of R±verside
C)a August 16 , 1995, before me,
appeared Zev Buf fman
Susan W. Jones , l~pm]ly
[]
personally known to me -OR-
proved to me on the b~i~ of atida'tory midme ~ be the pro'ran(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the insraiment.
Witness my hand and official seal.
CAi~AL-~ L-~
BY SIGNER
[]
nvDr~DUAr~s)
OFFiCER(S) CnTLE[S]):
President
[1
[]
[]
[]
[1
[1
PARTNER(S)
ATtORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
Chairperson
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies):
T,Z.B.G., Inc.
S~te of California
County of
appeared
, 1995, before me,
, personmy
[]
[1
personally known to me -OR-
proved to me on the bails of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wireess my hand and official seal.
SIGNATURE OF NOTARY
[]
[]
]ZqDI~UAL~S)
OFHCr=.R(S) crrrL~[s]):
CA.PAC1TY CLAIMS-r)
BY SIGNER
[]
[]
[]
[3
[]
[1
PART~ER(S)
ATFORNEY-IN-FACT
TRUSTEE(S)
SUBSCRIBING wrrNESS
GUARDIAN7CONSERVATOR
OTHER:
Chairperson
SIGNER IS REPRESENTING:
Name of person(s) or entity(i¢s):
LAX2:126~2'/.9 F'md: ^,,f~ ~, ~ -28-
ALL-PURPOSE ACKNOWLEDGM'I::NT
State of California
County of
, 1995, befor~ me,
, personally
[1
[1
personally known to me-OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
[]
[]
m-DWmUAL(S)
OFFICFtu(S) CTtTLE[S]):
CAPACITY ~
BY SIGNER
[]
[]
[]
[]
[]
[]
PARTNER(S)
ATTORNEY-IN-FACT
TRUSTV-~(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
Chairperson
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies):
AIJ.,-P~SE ACKNOWI ]=:DG~
State of California
County of
, 1995, before me,
[1
[]
personally known to me -OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by hi-~/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wireess my hand and official seal.
SIGNATURE OF NOTARY
[1
[1
mIDrV]DUAL(S)
OFF~CFm(S) (TrrLE[S]):
CAPACITY CLAIMED
BY SIGNER
[]
[1
[]
[1
[1
[3
PARTNER(S)
ATrORNEY-IN-FACT
TRUST~:~(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
OTHER:
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies):
I..AX2:126427.9 Final: Au~u~ 15, 1~ -30-
AX I--PURPOSE ACKNO~ArI-~-DGlV~NT
Stat~ of California
County of
appeared
,1995, before me,
[]
[]
personally known to me -OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
EXHIBIT NO. 1
SITE MAP
MASTER CONDITIONAL USE PERMIT
EXHIBIT NO. 1A
SITE MAP
WESTSIDE SPECIFIC PLAN
F:XH~IT NO. 2
I.EGAI, DESCI~IPTION OF ~qITF.
The area of the Project Site is bounded by the following:
Beginniug at the certedine of Rancho California Road and the westerly City
Limits; thence, southeasterly along the City Limit line to its intersection with
the centerline of Interstate 1//to the centerline of Rancho California Road;
thence, westerly along the centerline of Rancho California Road to the Point of
Approved by:
AGENCY:
By
Participant~
LAX2:12642'7.9 F'snal: Au~u~ L~, 1995 -32-
l~XHi!!rr NO. 3
DI~'-~CRIPTION OF PURI,IC IMI~RO~M~ITS
The public improvements described herein shall include the land acqui~tion, design,
and construction of the facilities and .shnll include all associated and incidental facilities
which may or may not be specifically identified within the description.
1. Renovation and l::.xpansion of Old Town First Streetl~ridge:
a. Preliminary design of First Street to its connection with Western
Bypass Corridor to include a Bridge over Murrieta Cr~k.
b. Obtaining all the permits and approvals which may be required,
including City of Temecula, U.S. Army Corp of Engineers, California Department of
Fish and Game, U.S. Department of Fish and Wild Life, Riverside County Flood
Control and any other permits and approvals as may be required.
c. Final design and consm~ction of facilities as said design is approved by
the reviewing agencies to include First Street from its intersection with Front Street to
Western Bypass Corridor.
d. Design and construction of all utilities as may be required by the
various utility companies to provide the required services to the proposed development.
2. Old Town Gateway I.andsc~ing Project:
a. Provide trees and other landscapeLug along the westside of Front Street
between Front Street and (Murietta Creek) from Rancho California Road to the Post
Office. Street tree placement shall be in conformance with the Old Town Specific
Plan.
b. Acquire the necessary right-of-way
approval.
Submit the Landscape Plan to the Planning Department for review and
d. Construct and install the landscaping in accordance with the Landscape
Plan as approved.
Old Town Demonstration Block. including the Front Street RepalrsfUpi, rades.
Front Street Reconstruction. Miscellaneous Street Improvements:
a. The area of improvement shall include First Street and Main Street.
b. Provide a conceptual design and submit to Planning DeparUnent for
review and approval for the following:
!-~ndscaping and Lighting;
Public signage, including Gateway entry sign, directional signs,
and street name polesigns; and
Street improvements to include curb, gutter, sidewalk
(boardwalk), paving, streetlighting with sound system, street
furniture to include wood benches, trash recepticles, newspaper
racks, mailboxes, bus shelters, phone booths, and drinking
fountains, all in general conformance with the Old Town
Specific Plan, and Circulation Element of the General Plan.
c. Prepare the necessary.plans, specifications for the above scope of work
and submit for review by the City and other interested parties as may be necessary.
d. Construct the facilities as per approved plans.
e. Topography for all of the Old Town shall be provided to facilitate
design and to eliminate potential future drainage problems.
4. Old Town Sewer Improvements:
a. Determine, based on the Ultimate Plan, "Old Town Specific Plan" and
Westside Specific Plan, including Enterlainment Facilities, the location of existing and
need for upgrading sanitary sewer facilities, and any new sanitary sewer facilities.
b. Present the report to the Eastern Municipal Water District (EMWD)
and the City for review and approval.
c. Design the facilities for the Sanitary Sewer Improvements based on the
approved report.
d. Obtain any right-of-way that may be necessary to construct said
improvements.
e. Construct said improvements to the satisfaction of EMWD.
5. Old Town Water System:
a. Determine, based on the Ultimate Plan 'Old Town Specific Plan',
Westside Specific Plan and the Entertainment Facilities, the location of existing water
systems, the needed upgrading, and needed new water facilities.
for review.
Present the report to Rancho CAlifornia Water, City and Fire Marshall
agencies.
Design the facilities as needed and obtain appwval by the above
d. Obtain the necessary right-of-way for the proposed improvements.
e. Construct said improvements to the satisfaction of Rancho California
Water District.
6. Storm Drain Improvements:
a. Determine the adequacy of the storm drain system as proposed in the
Old Town Specific Plan, i.e., 3rd and 6th Street storm drains, 1-15 to Murrieta
Creek.
b. Design said improvements and obtain all necessary permits for the
installation of said improvements. Permits may include but not be limited to Riverside
County Flood Control District, U.S. Army Corp of Engineers, California Department
of Fish and Game, and Caltrans.
c. Construct the improvements in accordance with the approvals of all the
above agencies including the City.
d. Provide for the necessary facilities along these systems to accept local
drainage.
7. Main Street Bridge improvements
a. Design improvements to the Mnir~ Street Bridge to accommodate its use
as a pedestrian bridge and obtain approvals of City and any other necessary agencies.
b. Construct said improvements.
8. Sixth Street Parking improvements
Construct up to seventy C/0) parking spaces on the Site which the Agency
owns at Sixth Street and Front Street.
9. Main Street facades and non-conforming siffn removal
a. Implement a program for assistance to property and business owners
for the improvement of facades and the removal of non-conforming signs.
EXHIB1T NO. 4
FORM OF CERTIFICATE OF COMPLetION
Recording Requested by and
When Recorded Return to:
T.Z.B.G., Inc.
CERTIFICATE OF COMPLFIION
~ ]~l~)EV!~LOPM10~ AGENCY OF ~ CITY OF ~ DOES
HEREBY FIND, DETERMINE AND DECLARE THAT:
1. The Board of Directors of the Redevelopment Agency does hereby find that:
A. On , 1995, the Redevelopment Agency of the City of
Temecula ("Agency") and T.Z.B.G, Inc.("Panicipant') entered into an
Owner-Participation Agreement ("Agreement') affecting the real property described on
Exhibit 'A' which is attached hereto and incorporated by this reference; and
B. The Agreement requires the Participant to construct certain Public
Improvements as defined in the Agreement and for Agency to furnish the Participant with
a Certificate of Completion upon completion of the Public Improvements, which certificate
shall be in such form as to permit it to be recorded in the Recorder's Office of the
Riverside County; and
C. Pursuant to said Agreement such certificates shall be conclusive determination
of satisfactory completion of the Public Improvements required by the Agreement; and
D. The Agency has conclusively determined that the construction of the' Public
Improvements have been satisfactorily completed as required by the Agreement.
2. As provided in said Agreement, the Agency does hereby certify that the construction
of the Public Improvements as required by the Agreement have been fully and satisfactorily
completed;
3. This Certificate of Completion does not constitute evidence of compliance with or
satisfaction of any obligation of the Participant to any holder of any deed of trust on the Site.
This Certificate of Completion is not a notice of completion as referred to in Section 3093 of
the California Civil Code.
4. Nothing contained in this instrument shall modify in any other way any other
provisions of said Agreement.
I..AX2:126427.9 lr,m~' Augu~ 1:~, 199~ -3~
IN WITNF. SS WHEREOF, the Agency has executed this Certificate a~ of
, 19_.
Rk'~EVFJOPMENT AGENCY OF TIlE
CITY OF TEMF, CLtLA
By:
ATTEST:
JUNE S. GI~:K
Secretary
APPROVFJ~ AS TO FORM:
PETER M. THORSON
General Counsel
ALL-PURPOSE ACKNOW~
State of California
County of
, 1995, before me,
[1
[1
persot~n!!y known to me -OR-
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Wireess my hand and official seal.
SIGNATURE OF NOTARY
[]
[]
nVDIVXDUAL(S)
OFFiCER(S) (TrrLE[S]):
CAPACITY CLAIMED
BY SIGNER
[]
[]
[]
[]
[]
[]
PArTNER(S)
ATTORNEY-IN-FACT
T~UST~.~-(S)
SUBSCRIBING WITNESS
GUARDIAN/CONSERVATOR
O~TIER:
SIGNER IS REPRF_~ENTING:
Name of person(s) or entity(ies):
TABLE OF CONTENTS
PAGE
ARTICLE I
Section 1.1
Section 1.2
Section 1.3
Section 1.4
A.
B.
Section 1.5
Section 1.6
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
ARTICLE
Section 3.1
Section 3.2
SURIECT OF AGRI=-I=.M'gNT ........................ 2
Purpose of Agreement ............................ 2
The Redevelopment Plan ........................... 3
The Site ..................................... 3
Parties to the Agreement ........................... 4
The Agency .................................. 4
The Participant ................................. 4
Prohibition Against Change in Participantship,
Management and Control of Participant .................. 4
Contract Documents ............................. 5
DEVELOPMF. NT OF THE SITE ..................... 5
Scope of Development ............................ 5
Construction Schedule ............................ 6
Project Parking Facilities .......................... 6 .-
Indemnity and Insurance ........................... 6
City and Other Governmental Agency Permits .............. 8
Antidiscrimination During Construction .................. 8
Certificate of Completion .......................... 9
USE OF THE SITE ............................. 10
U~e~ ...................................... 10
Project Name to Include "Old Town Temecula;#
Advertising of General Events ...................... lO
LAX2:126427.9 Final: August I$, 1995
Section :3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 3.8
Section 3.9
Section 3.10
ARTICLE IV
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
ARTICLE V
Section 5.1
Section 5.2
Programming for Entertainment Facilities ............... 10
Rent Free Availability of Eatertalnment Facilities
to Certain City Non-Profit Groups .................... 10
En~ment Facilities to Provide Educational
Component .................................. 10
Entertainment Facilities Hiring Policies ................. 11
Old Town Festival Square ......................... 11
Agency Guidelines for Consideration of Other
Entertainment Related Facilities ..................... 11
Covenants for Non-Discrimination .................... 12
Continuation of Covenants ........... ; ............. 13
FINANCING OF PUBLIC IMPROVEMF_2qTS
AND PAYMg-NTS TO AGENCY .................... 14
Responsibilities For Financing Entertainment
Facilities and Public Improvements ................... 14
Construction of Public Improvements by Participant .........14
Western Bypass Assessment District ................... 16
Community Facilities District ...................... 16
Relocation of Persons Displaced by the Project ............ 16
User Charge Upon Ticketa Sold ..................... 17
Participant Payment of Costs of Increased City
Services Resulting From the Project ................... 17
Reimbursement of Participant and Agency Costs
Incurred Prior to Close of Financing .................. 19
GENERAL PROVISIONS ......................... 20
Notices, Demands and Communications Among
the Parties .................................. 20
Conflicts of Interest ............................. 20
LAX2:126427.9 Piml: Augn~ 15, 1995 -i~-
Section 5.3
Section 5.4
Section 5.5
Section 5.6
Section 5.7
ARTICLE VI
Section 6.1
Section 6.2
A.
B.
Section 6.3
Section 6.4
Section 6.5
Section 6.6
Section 6.7
B.
C.
D.
Section 6.8
ARTICLE VII
Section 7.1
Section 7.2
Local, State and Federal Laws ...................... 20
Taxes, Assessments, Encumbrances and Liens ............. 20
Enforced Delay; Extension of Times of Performance ......... 20
Non-liability of Officials and Employees of the Agency ....... 21
Inspection of Books and Records ..................... 21
DEFAULTS AND REMF. F)I~_S ..................... 21
Defaults-General ............................. 21
Legal Actions ................................ 22
Institution of Legal Actions ........................ 22
Applicable Law ............................... 22
Rights and Remedies Are Cumulative .................. 22
Inaction Not a Waiver of Default ..................... 22
Damages ................................... 22
Specific Performance ............................ 22
Remedies and Rights Prior to the Close of
Financing ................................... 23
Termination by the Participant ...................... 23
Termination by the Agency ........................ 23
Procedure for Termination ...... ................... 23
Consequences of Termination ....................... 23
Conditions Precedent to Participants Obligations ........... 24
SPECIAL PROVISIONS ..................... ' ..... 24
Submission of Documents to the Agency for
Approval ................................... 24
Real Estate Commission .......................... 25
LAX2:126427.9 Finnl: Au~,ust 15, 1995
Section 7.3
Section 7.4
Entire Agreement, Waivers & General ................. 25
Time For Acceptance Of Agreement By Agency ........... 25
LAX2:126427.9 Fiscal: August 15, 1995
SUMMARY 1H~ORT
OF THE
OWNER PARTICIPATION AGI~
BY AND BETWEEN THE
lal~OEV!~I.O~ AGENCY OF TUF~ CITY OF TEMF_,CULA
T.Z.B.G., INC., A CALIFORNIA CORI~~ON
AUGUST 1~, 199~
INTRODUCTION
This summary report has been p~ by the Temecula Redevelopment Agency
('Agency') in order to describe the proposed Owner Participation Agreement
('Agreement') between the Agency and T.Z.B.G., Inc., a California Corporation
('Participant').
This summary report and the proposed Agreement have been made available for public
inspection at the time of first publication of the notice of hearing for the Agreement.
H. PROJECT DESCRIPTION
The proposed Project to be constructed by Participant on the Sire consists
components, the "Entertainment Facilities" and the "Public Improvements."
of two
The Entertainment Facilities are described as follows: (1) The Opera House; (2) W'fld
West Arena; (3) virtual r~ality theaters; (4) cabareJJphyhouse theaters; (5) "quick draw"
and indoor/outdoor exhibitions; (6) restaurants; CO theme related t~:fil; (8) Old Town
Festival Square, and (9) parking facilities.
The Public Improvements are described as follows: (1) r~novation and expansion of the
Old Town First Street Bridge; (2) Old Town Gateway landscaping; (3) Old Town
Demonstration
reconstructioll~
improvements;
improvements.
Block, including Front Street t~pairs/upgrades, Front Street
and miscellaneous street improvements;. (4) Old Town sewer
(5) Old Town water improvements; and (6) Old Town storm drain
The Public Improvements are estimated to cost $5,987,700 and ar~ to be constructed by
Participant in exchange for a contribution by Agency in a like amount. Agency funds,
equal to the estimated cost of the Public Improvements, are programmed within the
Capital Improvements Project budget for FY 95/96 adopted by the City Council on Inly
11, 1995.
Additional public improvements consist of the Main Street Bridge Improvements (at the
Ageney's discretion), Sixth Street Parking Improvements and Main Street Facades and
Non-conforming Sign Removal. The estimated costs for these additional public
improvements are $1,025,000 and will be paid for by the Agency. Agency funds, equal
to the estimated cost of the Public Improvements, ar~ programmed within the Capital
2
Improvements except for the l~in Street Bridge, Project budget for FY 95/96 adopted
by the City Council on July 11, 1995.
The Project is to be developed within controls established in the land use entitlements
approved by the City and as required by the Temecula Municipal Code and related laws
governing municipal planning, zoning and subdivision.
m. PROJECT LOCATION
The Entertainment Facilities and the Public Improvements will be located within two
areas described as the "Old Town Area" and the "Westside Area."
The Old Town Area is described as "Tourist Core Retail" on the Proposed Land Use
Districts Map of the Old Town Specific Plan approved by Ordinance No. 94-05 of the
City Council of the City of Temecula on February 22, 1994, which is on file in the
office of the City Clerk. The *Westside Area ° is generally located southwesterly of the
Old Town Area and described on the Study Area Map of the West.side Specific Plan
approved by Ordinance No. 95-08 of the City Council of the City of Temecula on June
27, 1995 which is on file in the office of the City Clerk. The Old Town Area and the
Westside Area are specifically described and depicted on Exhibit No. 1 and Exhibit No.
2. The Old Town Area portion of the site is located within the Temecula Redevelopment
3
Project Ax~a 1988-1. The Westside Area portion of the site is located just outside of the
Project Area and will be physically and economically integrated within the Old Town
Area.
IV. PARTICIPANT RF~PONSIBILrl'I~
The following is a summary of Participant's responsibilities under the proposed Owner
Participation Agreement:
he
The Participant shall assume sole and full responsibility, and all financ~ risk for
financing the design, construction and operation of the Entertainment Facilities
and the Public Improvements.
Neither the City nor the Agency shall assist in the financing of the Entertainment
Facilities through 'conduit financing' or any other means.
Be
In consideration of the payment of the sum of $5,987,700 by Agency to the
Participant, Participant shall design, acquire land, construct and install all of the
Public Improvements, as defined, at its sole risk, cost and expense.
The funding of the Western Bypass Corridor shall be by an assessment district.
Participant agrees to participate in and waives all rights to object to the formation
4
of an assessment district for the Western Bypass Corridor.
Participant shall be solely respo_n~hle for all cost overruns or expenses incurred
in building the Public Improvements in excess of the Agency's contribution of
$5,987,700. Shotfid the actual bid and a reasonable and customary construction
management fee result in costs lesa than $5,98?,?00, Participant shall reimburse
Agency the difference between actual costs and $5,987,700.
All Public Improvements shall be bid in accordance with the provisions of the
Public Contracts Code and applicable laws; Participant shall pay prevailing
wages for the Public Improvements in accordance with applicable laws.
Participant is solely responsible for complying with all requirements for
completion of the Public Improvements required by the land use entitlements for
the Project.
Participant agrees to reimburse the actual costs of the City and Agency incurred
in connection with the Project from the financing for the Entertainment Facilities
and/or the Public Improvements with the exception of City and/or Agency staff
time.
H. Participant agrees to the establishment and maintenance of a user charge of 8-
3/4 % of the face amount of each ticket sold for Entertainment Project events to
be used for financing the Project for a period of thirty five 05) years. Following
the period of ~ five (3~) yeats from the date of dosing of the financing of the
Enterlainment Facilities, an annual fee of $2,000,000 adjusted annually by the
average ticket price adjustment shall be paid to the Agency for an additional 1~
years.
The Participant shall include the name '*Old Town Temecula" in the legal and
operating name of the Entertainment Facilities, in all written and television
advertising and promotional materiah, and where commercially practical, radio
advertising.
Participant shall: (1) provide the Entertainment Facilities rent free for non-
competing public non-profit use for a minimum of forty (40) days per year;, (2)
include an educational component which will provide opportunities for performing
arts education for local area residents; and (3) make every effort to provide
diverse programming reflecting a cross-section of community preferences.
To the extent permitted by law, Participant shall adopt hiring policies for the
Entertainment Facilities which provide preference to local area residents.
L. Participant agrees to pay costs of ina'eased City services relating to police, fire
and street maintenance of adjacent streets, if any, resulting from the
Entertainment Project which exceed the public revenues generated directly by the
Site in the form of transient occupancy taxes, sales taxes, and property tax
M. Participant sh_nl! pay all relocation benefits as required by law.
V. AGENCY RESPONSIBH~rrIES
The following is a summary of the Agency's responsibilities under the terms of the
Agreement:
Agency shall pay the sum of $5,987,700 upon ten days written notice following
a determination by the Agency in its sole and absolute discretion that:
(1)
The financing for the Entertainment Facilities has dosed or commitments
are in place assuring the dose of financing; and
(2)
Participant has fully executed agreements for the construction of the
Entertainment Facilities and the Public Improvements.
In the event the Participant elects to finance the Public Improvements through a
7
community facilities district the Agency and Participant shall negotiate an
amendment to the Agreemeat to provid~ for Agency's paymeat of $5,987,700 for
land ac.q-i.~tion for Participant assuming responsibility for the Public
Impwvements.
Agency will construct additional public improvements consisting of the Main
Street Bridge Improvements (at the discretion of the Agency), Sixth Street
Parking Improvements and lVfnin Stl'~et Facades and Non-conforming Sign
Removal at an estimated cost of $1,025,000.
Agency will cause to be initiated and will diligently pursue the formation of a
community facilities district to assist the Participant in financing eligible public
facilities, such financing to be secured solely by property owned by Participant.
Participant shall be solely responsible for all costs of the financing.
De
Agency agrees to the establishment and maintenance of a user charge of 8-3/4 %
of the face amount of each ticket sold for Entertainment Project events to be used
by Participant to finance the Project for a period of thirty five (35) years.
Without restricting the discretionary powers of the City Planning Commission,
City Council, or Redevelopment Agency, Agency agrees to consult in good faith
with Participant prior to proposing adn~inistmtive guidelines governing future
8
entertainment related development and prior to considering future entertainment
related facilities affecting the Old Town Area.
Agency agrees to negotiate with Participant in good faith for the adoption of a
Parking Management Plan for the Old Town Area.
Agency shall assist Participant in obtaining prompt and expeditious processing of
its permit applications on a "fast track" basis.
City will vacate a portion of street right of way for the between parcels of the
Site, and it is ~pect~ ~ Participant will own the right of way upon vacation.
In the event Participant does not end up owning the right of way, Agency shall
acquire from the City street right of way to be vacated in an area not to exceed__
8,000 square feet and lease it to Participant for $1.00 per year if necessary for
the Old Town Festival Square component of the Project. The reuse value of the
area to be acquired and leased will be 'minimal given the restriction upon the use
as set forth in the Agreement.
Agency will diligently pursue the formation of an assessment district to fund the
costs of land acquisition and construction of the Western Bypass Corridor on or
before January 10, 1996 with the issuance of bonds on or before March 1, 1996.